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1 <br />1 prudent measures that FWS considers necessary to minimize such impact, and (3) set <br />2 forth terms and conditions that must be complied with by the federal agency to <br />3 implement these reasonable and prudent measures. 16 U.S.C. § 1536(b)(4). Failure to <br />4 comply with the mandatory terms and conditions of a take statement renders the <br />5 agency's action in violation of the ESA section 9 take prohibition. <br />6 II. NATIONAL ENVIRONMENTAL POLICY ACT <br />7 16. Congress enacted NEPA to "promote efforts which will prevent or <br />8 eliminate damage to the environment." 42 U.S.C.§ 4321. NEPA requires federal <br />9 agencies to analyze environmental impacts of a particular action. In addition, NEPA <br />10 ensures that the public is notified of and allowed to comment on the environmental <br />11 impacts of a proposed action before the agency finalizes its decision to proceed with the <br />12 action. <br />13 17. The cornerstone of NEPA is the environmental impact statement ( "EIS ") <br />14 that must be prepared for all "major federal actions significantly affecting the quality of <br />15 the human environment." 42 U.S.C.§ 4332(C). An EIS must be prepared prior to <br />16 initiating any major federal action so that the environmental impacts can be considered <br />17 and disclosed to the public during the decision - making process. 40 C.F.R. §§ 1501.2, <br />18 1502.5. Federal agencies may first prepare an environmental assessment ( "EA ") to <br />19 determine whether a project's environmental impacts are significant and an EIS is <br />20 required. 40 C.F.R. § 1508.9. If the EA concludes that a project "may" have a <br />21 significant impact on the environment, then an EIS must be prepared. If not, the federal <br />22 agency must provide a detailed statement of reasons why the project's impacts are <br />23 insignificant and issue a finding of no significant impacts ( "FONSI "). Id. 1508.13. <br />24 18. In either an EIS or EA, federal agencies must broadly consider the <br />25 environmental impacts of their actions. Federal agencies must not only review the <br />26 direct impacts of their actions, but also analyze indirect and cumulative impacts. <br />27 Indirect effects are those "caused by the action and are later in time or farther removed <br />28 in distance but are still reasonably foreseeable." 40 C.F.R. § 1508.8(b). Cumulative <br />Complaint 6 <br />Case 3:07 -cv- 08164 -DGC Document 1 Filed 12/07/2007 Page 6 of 20 <br />